Citation Nr: 1039000
Decision Date: 10/19/10 Archive Date: 10/22/10
DOCKET NO. 07-12 723 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles,
California
THE ISSUES
1. Entitlement to service connection for residuals of a right
knee injury.
2. Entitlement to compensation under 38 U.S.C.A. § 1151 for
peripheral vision loss of the left eye.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Kristi L. Gunn, Counsel
INTRODUCTION
The Veteran served on active duty from February 1943 to December
1945 and from September 1950 to June 1952.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from January 2006 and March 2006 rating decisions of the
Cleveland, Ohio, Department of Veterans Affairs (VA) Regional
Office (RO). In the January 2006 rating decision, in pertinent
part, the RO denied service connection for residuals of a right
knee injury. Entitlement to compensation under 38 U.S.C.A. §
1151 for peripheral vision loss of the left eye was denied by the
RO in the March 2006 rating decision. The Board notes that
during the course of the appeal, the Veteran's claims file was
temporarily brokered to the Cleveland, Ohio, VA Regional Office.
The Board notes that in the Veteran's VA Form 9s, Appeal to the
Board of Veterans' Appeals, received in April 2007 and September
2009, the Veteran indicated that he wanted to have a hearing
before the Board at the RO. The Veteran was scheduled for a
travel board hearing on June 23, 2010. However, the record
reflects that he failed to report for the scheduled hearing. The
Board finds that there is no Board hearing request pending at
this time. 38 C.F.R. § 20.702(d) (2009).
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The record as it stands is currently inadequate for the purpose
of rendering a fully informed decision as to the claims of
entitlement to service connection for residuals of a right knee
injury and entitlement to compensation under 38 U.S.C.A. § 1151
for peripheral vision loss of the left eye. Where the record
before the Board is inadequate to render a fully informed
decision, a remand to the RO is required in order to fulfill its
statutory duty to assist the veteran to develop the facts
pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377
(1993).
Review of the evidentiary record shows that in a March 2006
personal statement, the Veteran indicated that he underwent a
total knee replacement in February 2006 at his local VA hospital.
Additionally, in June 2009, the Veteran submitted a VA Form 21-
4142 Authorization and Consent to Release Information to the
Department of Veterans Affairs (VA). He requested that the RO
obtain VA medical records from the VA hospital in Loma Linda,
California, from 2003 to 2009 for his peripheral vision loss.
While the record contains VA outpatient treatment records from
December 2002 to November 2005, there is no indication that
records have been obtained and associated with the claims file
since 2005. As such, additional development is warranted. VA
records are considered part of the record on appeal since they
are within VA's constructive possession. Because VA has notice
of the existence of additional VA records, they must be retrieved
and associated with the other evidence already on file. See Bell
v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9
Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995).
Specifically, with regards to the claim for service connection
for residuals of a right knee injury, the Veteran stated he
injured his right knee in service, approximately in March 1951,
after getting his right foot caught in a "gang-way door." He
explained that his body twisted, and he could feel a tearing
sensation in his right knee. The Veteran stated that he received
treatment for his right knee injury at sick call and returned to
his assignment two days letter. He admitted to not reporting the
incident to his commander; however, a fellow officer witnessed
the Veteran's limping and heard his complaints regarding his knee
during service. See the March 2006 statement from R.P. VA
outpatient treatment records already associated with the claims
file, note the Veteran's reports of knee pain, and as previously
mentioned, total knee replacement has been performed in 2006 on
the right knee. The Veteran asserts that he has endured right
knee problems since being discharged from service.
In this case, the Veteran has not been provided a VA medical
examination for his claimed residuals of a right knee injury.
Under the Veterans Claims Assistance Act of 2000 (VCAA), the
Secretary's duty to assist requires that he provide a VA medical
examination to a claimant when there is (1) competent evidence of
a current disability or persistent or recurrent symptoms of a
disability; (2) evidence establishing that an event, injury, or
disease occurred in service or, for certain disease,
manifestation of the disease during an applicable presumptive
period for which the claimant qualifies; and (3) an indication
that the disability or persistent or recurrent symptoms of the
disability may be associated with the Veteran's service or with
another service-connected disability; but (4) insufficient
competent medical evidence on file for the Secretary to make a
decision on the claim. See 38 U.S.C.A. § 5103(d); Paralyzed
Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334,
1355-57 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381, 1384
(Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 81
(2006); 38 C.F.R. § 3.159(c)(4)(i) (2009).
In this case, the Veteran's reports of continuity of
symptomatology regarding his claimed disability can satisfy the
requirement for evidence that the claimed disability may be
related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83
(2006). The Board also notes that the threshold for finding a
link between a current disability and service is low. Locklear
v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at
83; see also Haas v. Shinseki, 22 Vet. App. 385, 388-89 (holding
that the "low threshold" was satisfied by the appellant's
statement that "his disabilities . . . began in 1980 and [that]
he received treatment at a VA hospital in Phoenix, Arizona").
However, in the absence of a competent medical opinion pertaining
to whether the Veteran currently has a diagnosed right knee
disability consistent with his complaints, and if so, whether the
etiology of the Veteran's disability is service related, the
Board finds that the record does not contain sufficient
information to make a decision on the claim. In this regard, the
Board notes that the Veteran is competent to state that he
incurred a right knee injury during her active service. See
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)
("[l]ay evidence can be competent and sufficient to establish a
diagnosis of a condition.") He is also competent to describe
the symptoms he currently experiences. Therefore, the Veteran
should be scheduled for a VA examination for his residuals of a
right knee injury.
Turning to the Veteran's claim for entitlement to compensation
under 38 U.S.C.A. § 1151 for peripheral vision loss of the left
eye, the Veteran was afforded a VA examination for his claim in
February 2006. According to the report, the VA examiner provided
an opinion after review of the claims file and physical
examination of the Veteran. However, as stated above, there are
additional outstanding VA treatment records showing treatment for
his eye disability. As such, the Board finds that an addendum
opinion should be requested from the February 2006 VA examiner,
taking into consideration the outstanding VA treatment records.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
1. Obtain and associate with the claims
file all outstanding records of treatment,
particularly medical reports dated since
2005, from the Jerry L. Pettis Memorial VA
Medical Center in Loma Linda, California,
part of the VA Loma Linda Healthcare
System. If any requested records are not
available, or the search for any such
records otherwise yields negative results,
that fact should clearly be documented in
the claims file. The Veteran should also
be apprised of such and given the
opportunity to submit the reports.
2. Schedule the Veteran for the
appropriate VA examination to determine
whether there is a causal nexus between his
active military service and his residuals
of a right knee injury. The claims file
must be made available to the examiner for
review, and the examination report should
reflect that such review has been
accomplished. All appropriate testing
should be conducted, and all pertinent
disabilities associated with the right knee
found to be present should be diagnosed.
For any diagnosed disability, the examiner
must provide an opinion as to whether it is
more likely than not (i.e., probability
greater than 50 percent), at least as
likely as not (i.e., probability of 50
percent), or less likely than not (i.e.,
probability less than 50 percent) any
disability had its origin in service or is
in any way related to the Veteran's active
service. If no disability of the right
knee is present the examiner must state so.
A rationale for any opinion reached must be
provided. If the VA examiner concludes
that an opinion cannot be offered without
engaging in speculation then she/he should
indicate this and discuss why an opinion
cannot be rendered.
3. After the additional VA treatment
records have been obtained, contact the VA
examiner who conducted the February 2006 VA
examination for the Veteran's left eye
peripheral vision loss. The examiner
should answer all of the following
questions:
(1) Did the Veteran sustain any additional
disability as a result of the VA eye
surgeries performed in September 2003 and
October 2003? If so, what is that
additional disability;
(2) If such additional disability was
sustained, was it the result of
carelessness, negligence, lack of proper
skill, error in judgment, or similar
instance of fault on the part of VA in
furnishing the hospital care or medical or
surgical treatment;
(3) Did VA fail to exercise the degree of
care that would be expected of a reasonable
health care provider; and
(4) Was the proximate cause of any
additional disability an event not
reasonably foreseeable?
A rationale for any opinion reached must be
provided. If the examiner finds it
impossible to provide any requested opinion
without resort to pure speculation, he or
she should so indicate and discuss why an
opinion cannot be provided. If the VA
examiner is not available, another
examination is authorized for determining
the etiology of any current eye disorder.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).